Dennis v. Larkin

Wright, J. i. brapt :^xemsaHo11 air duty. This, it must be admitted, is a novel action, and yet plaintiff should not for this reason be denied relief, if entitled thereto, upon any flegal ground. The duty of the defendant to respond to the demand of the government was undoubted. Absconding or secreting himself so as to [435] avoid the draft, he was a deserter and liable to be dealt with as such. But the question is, did this give to plaintiff, drawn, as he claims, in the alternate class, a right of action ? It seems to us not, for reasons which we shall briefly state. Plaintiff seeks to bring his case within this proposition : that “ when a person has an important public duty to perform, he is bound to perform that duty, and if he neglects and refuses so to do, and an individual, in consequence, sustains an injury, that lays the foundation for an action to recover damages by way of compensation for the injury he has sustained.” Brown’s Legal Maxims, 156. This proposition, though abstractly ever so correct, has unquestionable reference, primarily, to public officers or corporations, upon whom, by law, particular duties are imposed, as the cases cited to sustain it abundantly demonstrate. Thus, in Sutton v. Johnstone, 1 Tenn., 493, the point made was, whether an action obtained in favor of a subordinate against his superior officer, for an act done (maliciously) in the course of discipline, and under powers incidental to the situation of the superior. So in Bartlett v. Crozier, 15 Johns., 251, the action was against an overseer for neglecting willfully and carelessly to keep a bridge in repair, whereby, &c. And there again the cases cited to support the text of 1 Hill, on Torts, 116, are of the same general character. Thus, Griswold v. Gallup, 22 Conn., 208, was an action against a town for neglect to keep in repair a public highway. Catchpole v. The Ambrogate, &c., 1 E. & B., 111, was a case against a railroad company, for wrongfully omitting their statutory duty in regard to the transfer of stock. Griffin v. Farewell, 20 Vt., 151, was an action for the wrongful suing out of an attachment. Sheldon v. Fairfax, 21 Vt., 102, was a case for neglect of defendant to remove certain paupers, whereby plaintiffs were obliged to incur certain expenses, &c. And in Henly v. Mayor of [436] Lynne, 5 Bing., 91, plaintiff claimed that he suffered loss in consequence of the decay of certain sea walls, which the corporation was directed and required to repair, under the terms of a grant from the crown. And see Russell v. Dennon, 2 Term, 671; Townsend v. Turnpike Co., 6 Johns., 90. We need not do more to show the radical difference in principle between the cases cited and the one at bar. The plaintiff’s case falls rather within the rule that the grievance complained of was against the entire community, no one of whom was injured more than another. Or the other as well established, that no action lies where the wrong complained of is remote, or does not produce the injury naturally, legally and directly. In law the immediate and not the remote cause of any event is regarded. Or, as this maxim is otherwise stated: “It were infinite for the law to consider the causes of causes, and their impulsions one upon another; therefore, it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree.” Bac. Max. Reg., 1. The case is not analogous to those where, by some public wrong, the plaintiff claims tobe especially and particularly injured, or to be particularly damaged. Thus we know that for a common nuisance a particular person shall not have his action, for by the same reason every one might have, and the wrong-doer would thereby be punished without limit, for one and the same cause. And it is equally true, we admit, that any one sustaining a particular damage thereby, may have his action. And the same is true of other general or public wrongs. This inj ury or damage, however, must result as the natural, legal and direct act of the party charged with the omission of duty or commission of the wrong. Not only so, but the loss claimed or charged must be brought about by the violation of the legal rights of others, or another. [437] Now, applying these well settled and undisputed rules, let us see what there is to sustain this action. By the desertion or failure of the defendant to answer the call of the government, we cannot see that plaintiff’s legal rights were any more directly or necessarily affected, than those of any other citizen, or the community generally. The public generally was interested in defendant’s discharge of the duties imposed upon him, to defend the cause of the country, when selected in the manner charged, but the plaintiff no more than any one else, was injured thereby or could complain of the same. His duty was no greater than that of plaintiff’s. When plaintiff responded to the call, he was but discharging his patriotic duty, and he has no legal right to complain because others were not impelled by motives equally correct and commendable. That he happened to be drawn as defendant’s alternate, could make no difference, for he might have been drawn in the first instance. It is as though defendant had failed to attend a term of court when summoned as a juror, and plaintiff had, because of such omission of duty, been required to serve for a week to the great injury of his private business. The duty of the defendant in this case at bar, only differs from the one put, in the peculiar nature of the trust imposed or possible injury resulting, and yet no one would certainly claim, that in the instance supposed, damages could be recovered. It must be remembered that the petition does not charge ■ direct malice, nor yet special fraud. If so, plaintiff might, upon general and well recognized principles, have a cause of action. Bartholomew v. Bentley, 15 Ohio, 659. The fraud, if any, was practiced upon the nation, upon the public, and for this the perpetrator would be liable to the public, and not necessarily to the plaintiff, any more than if months prior to the draft, in fear of it, and for the purpose of avoiding it, he had put out an eye or cut off an arm. And [438] this is demonstrated by remembering that plaintiff was not the alternate of defendant specially. That is to say, that if two or three of those first drawn had failed to appear and respond to the call, plaintiff would have no greater ground of complaint against one than all. And the same would be true, if those first selected had, before that time, voluntarily disabled themselves from discharging the duties of a soldier. Whatever might be the rule where defendant, after both were drawn, and for the purpose of compelling plaintiff to enter the service, had disabled himself, it must be very clear, that there would be no action if the injury was inflicted before. Such a case would fall within that general class of accidents or damages resulting from injuries other than legal in their nature, and in which the law does not seek to, nor will it interfere. It is as though a stage proprietor should sue a contractor who undertook to supply coaches, for injury resulting from the breaking down of other coaches; and yet, while in such case there might be damnum, it would certainly be absque injuria. Winterbottom v. Wright, 10 Mees. & Wels., 109; and see, Howland v. Vincent, 10 Metc., 371.